Typically, in the State of Florida, when death occurs during a marriage, the spouse that outlives the decedent is known as a “surviving spouse.” However, when death occurs prior to a divorce decree, the common consensus in Florida is that death terminates the divorce proceeding.[i] Generally, the petition for dissolution of marriage becomes moot the minute that either party to the divorce passes away.[ii] This is because as the Jaris v. Tucker en banc decision explains, “a court is not [empowered] to render . . . judgment of dissolution after the death of one of the parties.”[iii] In other words, a death that occurs during a divorce proceeding ends the marriage and puts the parties where they would have been prior to filing the action for dissolution. Under this set of facts, since the decedent died while he or she remained married, their interests are superseded by the surviving spouse who takes spousal rights to the decedent’s property, “whether or not the decedent provided for such in their will.”[iv] This can be a troubling thought for spouses pursuing the dissolution of their marriage while facing imminent death.
Currently, the only remedy that exists for ill spouses seeking to protect their assets via divorce is a process called bifurcation. Bifurcation is the process of “dissolving the marriage but reserv[ing] jurisdiction to determine later the property rights between the parties.”[v] In other words, bifurcation allows “both parties in a divorce [to be] legally declared . . . single person[s] while the other issues in their divorce are still being worked out.”[vi] Bifurcation is not favored by Florida courts but is occasionally granted under “exceptional circumstances” like imminent death.[vii] To achieve this divide, attorneys ought to file a motion to bifurcate the divorce. Where there exists looming health concern (e.g., imminent death), it is imperative that lawyers act in a speedy manner to submit the motion for consideration.
Importantly, Florida lawyers should take advantage of the fact that there are no restrictions to filing the motion to bifurcate at the same time as the petition for dissolution. Furthermore, it is also worth noting that once the first stage of bifurcation is completed, the parties, now single, are no longer entitled to spousal survival rights. Notably, well into the second stage of bifurcation, prejudice can sprout since the split of the two parties does not halt equitable distribution from taking place, given that the division of property remains to be determined by the courts.
To better understand how prejudice can arise in these situations, the purpose of equitable distribution must first be analyzed. Equitable distribution allows for “a fair allocation of property based on a list of factors or guidelines set forth by state law.”[viii] Hence, equitable distribution is not the division of assets in perfect halves, nor does it imply an “equal” divide among the parties.[ix] Despite this, according to Section 61.075(2) of the 2021 Florida Statutes, “the court must begin with the premise that the distribution should be equal unless there is a justification for an unequal distribution based on all relevant factors.”[x] A 50/50 split of the assets are then the starting presumption applied by judges, absent testimony that may prove otherwise.
In instances where the ill petitioning spouse passes away after the court divides the property using equitable distribution, no unfair result occurs because the petitioner had a chance to testify to their contributions prior to death. However, if this same spouse were to pass away before the court could enter a final judgment on equitable distribution, the judge would be back to looking at a 50/50 divide because the spouse that had standing to rebut the presumption is not alive. Hence, without the decedent’s testimony as to how to divide the assets, 50 percent goes to the party that remained alive, and the other 50 reside in the decedent’s estate. As a result, the living ex-spouse can walk away with more than they are legally entitled to (i.e., unjustly enriched) with the decedent incapable of testifying as to “all relevant factors” that merit consideration. In turn, the estate will be unable to reap the benefits of a fair division of assets as the decedent would have wanted.
To avoid this unjust outcome, attorneys ought to work efficiently toward preserving the testimony of their clients while they are still alive. The ideal method for a lawyer to handle the preservation of testimony is by taking depositions of his or her client that, in the event of the client’s passing, can be admitted into evidence and weighed by the judge during the second stage of bifurcation. Failure to follow through can gravely impact the determination of property rights if the client dies prior to equitable distribution, as noted above.
[i] See Malave v. Malave, 178 So. 3d 51, 52 (Fla. Dist. Ct. App. 2015).
[ii] See Marlow v. Brown, 944 So. 2d 1036, 1039 (Fla. Dist. Ct. App. 2006).
[iii] Jaris v. Tucker, 414 So. 2d 1164, 1165 (Fla. Dist. Ct. App. 1982) (en banc).
[iv] Carol A. Lawson, Surviving Spouse Rights In Florida, The L. Off. of Carol A. Lawson (June 11, 2019), https://carollawsonpa.com/2019/06/surviving-spouse-rights-in-florida/.
[v] James F. Miller, Bifurcation Of Dissolution Of Marriage Actions –Part Two, The Fla. Bar (Dec. 11, 1981), https://www.floridabar.org/the-florida-bar-journal/bifurcation-of-dissolution-of-marriage-actions-part-two/; see also Death & Divorce In Florida — Can You Have A Florida Probate & A Florida Divorce At The Same Time? (Yes, Even After The Husband Passes Away), Pankauski Hauser Lazarus PLLC (Mar. 3, 2021), https://www.pankauskilawfirm.com/blog/death-divorce-in-florida-can-you-have-a-florida-probate-a-florida-divorce-at-the-same-time-yes-even-after-the-husband-passes-away/; see also Hyman v. Hyman, 310 So. 2d 378, 379 (Fla. Dist. Ct. App. 1975), cert. discharged, 329 So. 2d 299 (Fla. 1976).
[vi] Jason Crowley, Florida Divorce Guide, Survive Divorce (July 8, 2021), https://www.survivedivorce.com/florida.
[vii] See Miller, supra note V.
[viii] Equitable Distribution, Legal Info. Inst., https://www.law.cornell.edu/wex/equitable_distribution (last visited Feb. 11, 2022).
[ix] See Equitable Distribution Doesn’t Necessarily Mean Equal Distribution, Divorce Done Right, https://divorcedoneright.com/news/equitable-distribution-doesnt-necessarily-mean-equal-distribution/ (last visited Feb. 11, 2022).
[x] Fla. Stat. § 61.075(2) (2021).
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